House-to-house 'Tokhang' may be unconstitutional, says SC justice

Ina Reformina, ABS-CBN News

Posted at Nov 28 2017 08:39 PM | Updated as of Nov 28 2017 10:35 PM

An officer of the Muntinlupa City police greets a dog as a house helper approaches the gate of a house in Ayala Alabang, where the Philippine National Police conducted a "modified Tokhang" drive. Jonathan Cellona, ABS-CBN News/file photo

A magistrate of the Supreme Court (SC) has found issue with the house-to-house visitations conducted by the police in their war on drugs, as oral arguments on two consolidated petitions against the campaign resumed Tuesday.

Associate Justice Francis Jardeleza, in his interpellation of Solicitor General Jose Calida, pointed out that stage 3 of Project: Tokhang under assailed Philippine National Police Command Memorandum Circular (CMC) No. 16-2016 may be a violation of people's right to be secure in their persons, houses, and effects.

“Isn’t that custodial investigation which triggers the police to warn the suspect or person of interest that before he even answers any question he has the right to a lawyer?" he said.

"I submit to you, Mr. SolGen, when the police under Project: Tokhang knock on the door, effectively they have invited themselves into the home of the suspect and that is a violation of the definition of custodial investigation. If the police cannot invite you to the station, the police cannot under the same circumstances invite themselves into your home,” he added.

The magistrate explained that stage 3 of Project Tokhang violates section 2 of Republic Act (RA) No. 7438, which defines the rights of persons arrested, detained, or under custodial investigation, and the duties of the concerned arresting, detaining, and investigating officers.

“You have effectively transferred the police station to the house... especially if it is done in the evening, wee hours of the morning. I’m concerned about this stage 3, and to my mind, that’s a violation of the rights of the suspect or if you call him the ‘target' or you call him the 'person of interest' of his right against self-incrimination,” Jardeleza said, adding the issuance of a temporary restraining order (TRO), specifically to halt stage 3, may be warranted.

Stage 3 of Project Tokhang is described as “the highlight” of the project, "whereby a team is first organized… [t]he designated team leader is mandated to ensure the presence of the Provincial, City, Municipal or Barangay Drug Abuse Council and barangay tanods to assist them and to serve as witnesses in the conduct of the house-to-house visitations.”

"CMC No. 16-2016 further requires that this visitation be done in a manner that shall not violate the rights of the subject. Any person who is willing to undergo voluntary rehabilitation shall be processed accordingly,” Calida told the high court during his opening statement.

In response to Jardeleza’s observation, the top government lawyer explained stage 3 is not only limited to the presence of policemen, but also mandates the presence of the above-mentioned civilian officers.

“This is not a mere police intervention,” Calida explained.

The special session on the consolidated Almora, et al. and Daño petitions was adjourned at 5 p.m. Tuesday, and will resume on December 5 at 2 p.m.